Are Chemical Safety Inspectors Being Blocked in West, TX?

After the devastating explosion of a fertilizer plant in West, Texas, that killed 15 and injured about 200, most people assumed—as did the two Texas Senators—that there would be a full investigation of the incident.

To be sure, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) was able to send its national response team to begin looking for a possible crime. The problem however, is that this has been getting in the way of the Chemical Safety Board (CSB). The CSB was created in 1998 to investigate chemical accidents. The agency isn’t a law enforcement agency, but rather is one that conducts “root cause investigations,” according to CSB Chairman Dr. Rafael Moure-Eraso. But the CSB has been prevented from properly accessing the site and from doing its job.

This is not because the independent federal agency hasn’t been trying. The CSB sent 18 investigators and technical experts to the site within 24 hours of the April 17 blast. However, the ATF has not only prevented CSB full access to witnesses, it has reportedly been altering or removing valuable evidence. In a May 17 letter to Senate Environment and Public Works Committee Chairman Barbara Boxer, Dr. Moure-Eraso wrote of his frustration and concern about the “unprecedented and harmful delay”:

At the same time the CSB deployed its investigative team and associated fire and blast experts, the Justice Department’s Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) mobilized a large “national response team” that assumed essentially exclusive control of the incident site in concert with Texas State Fire Marshal’s Office (SFMO) personnel. These criminal investigators have exercised exclusive control of the site for a full one-month period, from April 17, 2013, until today and have altered or removed almost all relevant physical evidence at the site. The ATF and SFMO consistently expressed the position that CSB was not permitted to conduct separate interviews, prepare expert analysis, or author its own independent report. The ATF and SFMO stated that because in their view this was exclusively a criminal investigation, there could be only one version of what occurred and one report.

During the critical period before the accident site was completely altered, CSB investigators were explicitly excluded from the site by ATF/SFMO and received only limited access days later. The CSB investigative leadership had no meaningful input into how the site was managed or what pieces of potential evidence were collected, altered, removed, destroyed, or discarded. Throughout this period, the incident site was massively and irreversibly altered under the direction of ATF personnel, who used cranes, bulldozers, and other excavation apparatus in an ultimately unsuccessful quest to find a single ignition source for the original fire. In a news statement on May 16, the ATF said that over the past month it has “spent approximately $500,000 in the rental of heavy equipment, which assisted in excavating the scene” – fully half the cost of their overall inquiry. [Hyperlink replaces in-letter footnote]

In return for limited and unsatisfactory site access, the CSB had to agree to conduct no witness interviews, which form an integral and essential part of the CSB investigative process. This state of affairs with witness interviews continued for almost three weeks after the incident – an unprecedented and harmful delay. On the morning of May 7, the CSB finally commenced its interview process with a knowledgeable plant employee who had already been interviewed multiple times by the ATF. As soon as the witness left his car near the CSB’s temporary offices in downtown West, he was suddenly surrounded by four armed ATF and SFMO agents and taken away for further ATF interrogation at an unknown location. This occurred without any explanation or prior notice to the CSB. Only after numerous protests and inquiries did the witness eventually reappear about four hours later.

On the afternoon of May 13, Don Holmstrom, director of the western regional office of the chemical safety agency, sent his ATF counterpart a simple request: Grant access to the site to Chemical Safety Board personnel beginning May 15.

Two hours later, he got a terse response from Brian Hoback, supervisor of an elite ATF national response team.

“Access denied until further notice,” he said in an email obtained by the American-Statesman. “We are not releasing the site at that time. Secondly, we are releasing the site to the responsible party’s attorney … when we are finished. Date unknown.”

When asked at a joint news conference of the ATF and the Texas State Fire Marshal on May 16 if the information collected would be made available to the Chemical Safety Board, Assistant State Fire Marshall Kelly Kistner stated that the agencies would not be making it available at that time because “this is an ongoing criminal investigation.” This is all happening despite a 2001 Memorandum of Understanding between ATF and CSB that was intended to minimize disputes over jurisdiction between the agencies.

The chairman, Rafael Moure-Eraso, elaborated further in an interview Wednesday about why unfettered access to an accident scene, even amid a criminal investigation, is important.

Moure-Eraso told me CSB investigators need to collect their own chemical samples, mark exact positions of equipment like control valves and preserve other physical evidence like debris. Those seemingly innocuous things could yield important clues about what went wrong inside a company – an equipment malfunction or worker error, for example – and help formulate safety improvements or regulatory changes, he said.

“We’re trying to find out why this happened, not only how it happened,” Moure-Eraso told me. “That’s what we’re wanting to learn to avoid the next one [disaster].”

Why does this matter? There are essential lessons that need to be learned from this incident. As it turns out, the circumstances at West, Texas, may in fact be replicated across the country. Reuters reports that:

At least 800,000 people across the United States live near hundreds of sites that store large amounts of potentially explosive ammonium nitrate, which investigators are blaming as the source of last month's deadly blast at a fertilizer plant in West, Texas, a Reuters analysis shows.

Hundreds of schools, 20 hospitals and 13 churches, as well as hundreds of thousands of households, also sit near the sites. At least 12 ammonium-nitrate facilities have 10,000 or more people living within a mile.

The mayor of West, Texas, is reported to hope for new regulation to prevent future such tragedies.

Given that such recommendations are the purview of CSB, but are not the purview of the ATF, it is hard to see how such recommendations could be forthcoming under the current circumstances.

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